RIGHTS-BASED POLICING: HOW DO WE GET THERE? - A SUBMISSION BY THE IRISH COUNCIL FOR CIVIL LIBERTIES TO THE COMMISSION ON THE FUTURE OF POLICING
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RIGHTS-BASED POLICING: HOW DO WE GET THERE? A SUBMISSION BY THE IRISH COUNCIL FOR CIVIL LIBERTIES TO THE COMMISSION ON THE FUTURE OF POLICING
ABOUT THE ICCL
F
ounded in 1976, for over 40 years the Irish Council for Civil Liberties (ICCL) has worked to
defend and strengthen constitutional rights protections and to ensure the full implementation
of European and other international human rights standards in Ireland.
In our work, the ICCL draws on the tradition of civil liberties activism in many countries, including the
civil rights movements in Northern Ireland and the United States. It has developed strong partnerships
with civil society organisations in Ireland and networks and alliances with similar organisations
internationally.
Domestically focused and internationally informed, the ICCL has played a leading role in some of
Ireland’s most important human rights campaigns, including the campaigns for legal divorce and
contraception and for decriminalisation of homosexuality and marriage equality. The ICCL has also
been a leading force for the introduction of equality legislation and for the ratification and incorporation
of international human rights treaties.
The ICCL was a founder member of the International Network of Civil Liberties Organisations (INCLO),
and was a founder of the JUSTICIA European Rights Network of 19 civil society organisations working
in the area of procedural rights, defence rights and victims’ rights.
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 01
ACKNOWLEDGMENTS
T
he ICCL wishes to thank the Community Foundation for Ireland for its generous financial
support which enabled us to carry out the research for this submission and to convene a public
discussion on the topic of ‘Rights-Based Policing: How do we get there?’ in Dublin on 30 January
2018. The event included a moderated conversation among representatives of the Commission on the
Future of Policing, the Deputy Garda Commissioner, the Policing Authority, the Garda Inspectorate
and the Garda Siochána Ombudsman Commission. It was also addressed by Alyson Kilpatrick BL,
former Human Rights Advisor to the Northern Ireland Policing Board.
The majority of the research for this report was carried out by Dr Maeve O’Rourke, Senior Research
and Policy Officer at the Irish Council for Civil Liberties. Many thanks are due also to Ethan Shattock,
Administrative and Policy Assistant at the Irish Council for Civil Liberties, for his research.
The ICCL also wishes to thank Dr Mary O’Rawe BL and Dr Julie Norris for giving of their time to inform
this research.
02 RIGHTS-BASED POLICING: HOW DO WE GET THERE?
CONTENTS
FOREWORD 04
EXECUTIVE SUMMARY 06
PART A: WHY HUMAN RIGHTS ARE FOUNDATIONAL TO ALL ASPECTS OF POLICING 11
1. WHAT ARE HUMAN RIGHTS? 12
2. IRELAND’S HUMAN RIGHTS OBLIGATIONS 13
2.1. Human rights under Irish law 13
2.2. Ireland’s human rights obligations under international law 14
2.3. European and international human rights standards concerning policing 15
3. WHY ALL ASPECTS OF POLICING AFFECT HUMAN RIGHTS 16
4. IMPLEMENTATION AND ENFORCEMENT OF HUMAN RIGHTS OBLIGATIONS IN IRELAND 18
PART B: CONCRETE STEPS NECESSARY TO EMBED HUMAN RIGHTS IN IRISH POLICING 21
1. A COMPREHENSIVE FRAMEWORK FOR EMBEDDING HUMAN RIGHTS 23
a A statutory basis for all of the key mechanisms that are required to embed
human rights in all aspects of policing 23
b Human Rights Officers with the authority to engage with and make recommendations
in all areas in each of the policing institutions 23
b Human rights monitoring index 23
d A statutory mechanism for following up on the Commission’s recommendations 24
2. ACCOUNTABILITY AND OVERSIGHT STRUCTURES 25
2.1. TRANSPARENCY 25
a Garda policies should be publicly available 25
b Statistical data on Garda actions and practices should be readily available 26
2.2. LEGAL ACCOUNTABILITY 27
a Garda policies should contain clear guidelines on human rights obligations 27
b The Garda Discipline Regulations should be reviewed 28
c The rights of individuals in Garda custody need greater protection in law 29
d Consideration should be given to the separation of policing and prosecution 31
e There is a need for greater legal protection from arbitrary detention 31
f The witness protection programme should be put on a statutory basis 32
g There is a need for greater legal protection of the right to an effective investigation 33
2.3. INDEPENDENT OVERSIGHT 37
a Ratification of the Optional Protocol to the UN Convention against Torture (OPCAT) 37
b Department of Justice and Equality 39
c Policing Authority 40
d Garda Síochána Ombudsman Commission (GSOC) 40
e Garda Inspectorate 42
f The courts 43
g An Ombudsman for Victims 43
3. SURVEILLANCE, PRIVACY AND STATE SECURITY 44
a Legislation on state surveillance requires reform 44
b Data Protection legislation requires review 47
c There is a need for independent oversight of state surveillance and use of personal data 47
4. A CULTURE OF RESPECT FOR HUMAN RIGHTS AND EQUALITY 50
a Community policing 50
b Garda management and human resources structures 51
c Human rights-based training 52
APPENDIX: SELECTED ICCL PUBLICATIONS ON POLICING 53
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 03
FOREWORD
T
he Irish Council for Civil Liberties (ICCL) welcomes the establishment of the Commission on the
Future of Policing in Ireland, having long campaigned for the overhaul of laws, structures and
practices concerning policing in Ireland. Indeed, ICCL’s establishment in 1976 was a reaction
to proposals for extensive emergency powers legislation and allegations of systemic mistreatment of
suspects by an identified group of Gardaí who were referred to as “The Heavy Gang”.
Over the intervening forty years, Garda reform has been at the heart of ICCL’s work. We campaigned
for the establishment of the Policing Authority, the Garda Síochána Ombudsman Commission and
the Garda Inspectorate as necessary oversight bodies. Policing was a common thread throughout
our early and subsequent campaigns challenging emergency powers; our work defending freedom of
association and assembly; and our participation in national debates on immigration, gender violence
and respect for private and family life. In short, issues about An Garda Síochána have always been
centre stage in Irish human rights discourse. Now it is time to move human rights discourse to centre
stage at An Garda Síochána.
From a human rights perspective, policing is the most important sphere of public administration and
defines the interface between individuals and the State. Gardaí have unique functions in protecting the
public from human rights violations and in vindicating the rights of victims through investigation and
prosecution. The unique powers and functions of An Garda Síochána mean that officers and manag-
ers must balance and interpret often competing rights in a wide range of their everyday tasks. The
unique nature and extent of Garda powers carry at all times the potential for human rights violations
to occur – from violations of liberty and privacy, up to violations of bodily integrity, torture or, even on
occasions, violations of the right to life.
The ICCL acknowledges that major steps have been taken by successive governments, in response
to the various controversies, to increase the accountability and effectiveness of An Garda Síochána,
notably since the enactment of the Garda Síochána Act 2005. The establishment of the Garda Om-
budsman Commission (GSOC), the Garda Inspectorate and the Policing Authority were all welcome,
as are more recent amendments to the 2005 Act to broaden the powers of GSOC and the Inspector-
ate. These oversight bodies have made significant and valuable contributions and recommendations
regarding further reform of the force. Initiatives such as the enactment of the Protected Disclosures
Act 2014 and the Policing Authority’s publication of a Code of Ethics for the Garda Síochána in 2017
are also welcome. In addition, it is important to acknowledge the work underway to implement the
Garda Modernisation and Renewal Programme 2016-2021 on foot of thorough reports from the Garda
Inspectorate and the recommendations of other statutory oversight bodies and stakeholders.
It remains the case, however, that these reforms have ultimately not been successful in resolving the
structural difficulties within Irish policing. Over the past 15 years, the structures and practices of An
Garda Síochána have been subjected to unprecedented scrutiny and criticism, and justifiably so. The
Fennelly Commission and the O’Higgins Commission reports have given a detailed insight into con-
tinuing deficient management structures and breaches of discipline: problems that have persisted
since Mr Justice Morris made similar findings well over a decade ago. The Inspectorate’s report in
2015 noted that many of its previous recommendations, while accepted by An Garda Síochána, had
gone unimplemented.
04 RIGHTS-BASED POLICING: HOW DO WE GET THERE?
In the midst of the stream of investigations and reform efforts over the past 15 years, the ICCL has consistently called for human rights-based reform of An Garda Síochána. The ICCL has not been alone in this; the IHREC (and formerly the IHRC) have also made these calls. We acknowledge that An Garda Síochána itself has undertaken several initiatives to incorporate hu- man rights principles into policing. For example, An Garda Síochána established a Human Rights Office and a Human Rights Working Group in 1999, which commissioned Ionann Management Con- sultants to carry out a Human Rights Audit of the force, published in 2004. In response to the Ionann Audit, the Garda Commissioner drew up a Human Rights Action Plan and established a Strategic Hu- man Rights Advisory Committee. A Human Rights Training Unit was also established. In sum, much good work has been done over many years by those within and outside An Garda Sío- chána to ensure human rights inform Irish policing. However, these efforts have not penetrated throughout the organisation and have not been effective in providing solutions to the management and operational problems which have continued to dog the organisation. The ICCL believes that only by integrating a human rights culture throughout the organisation can these kinds of initiatives truly take root. Now is the time to build on this work to set out an ambitious, human-rights based, vision for the next phase of reform. The value of a human rights framework, as we saw in the Patten reform process in Northern Ireland, is in the potential of human rights to support a shift from a negative to a positive police culture where the police service can support stronger communities. We are encouraged to see that the Commission on the Future of Policing has recognised human rights as a foundational aspect of a reformed ap- proach to policing. It is also noticeable that section 3 (B) of the Garda Síochána Act 2005 (as amended) now states as a ‘policing principle’ that policing services are to be provided ‘in a manner that respects human rights’. We also welcome the centrality of human rights to the Garda Code of Ethics, published by the Policing Authority in 2017. We are now at a crucial moment for Irish policing where political will for reform and public demand for radical change are aligned. The ICCL believes that this Commission on the Future of Policing in Ireland, with its broad mandate and terms of reference, can address the key structural and organ- isational challenges facing Irish policing. We are deeply ambitious for this reform process. The fun- damentals of Irish policing carry great potential and the ICCL believes that Ireland should aspire to achieve best practice standards of human rights policing. In this submission, we put forward an optimistic case for a broad-based Garda reform process that will allow Irish policing to move beyond the various scandals of recent decades and begin a process of building a police service which reflects the principles and values of human rights, and which enjoys the confidence, trust and support of our communities. Liam Herrick Executive Director Irish Council for Civil Liberties January 2018 A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 05
EXECUTIVE SUMMARY
T
he ICCL’s overarching proposal is that the Commission on the Future of Policing should place
human rights at the core of its recommendations for reform of policing in Ireland. Human rights
should be understood to be a foundational framework encompassing all aspects of policing and
connecting policing to other aspects of state treatment of individuals.
This submission is aspirational in its vision and as such does not attempt to name all of the human
rights abuses which have occurred over the years in the policing arena. Some examples are necessary
to illustrate certain points, but others have been omitted so as to allow the focus to remain on our
vision for a police force which respects the human rights of all those who interact with it.
First, we address the question of why human rights should be understood as foundational to all
aspects of policing through a discussion of: what human rights actually mean, what Ireland’s key
human rights obligations are, the relevance of human rights to policing at all operational levels, and
the need to constantly strengthen Ireland’s implementation of its human rights obligations.
Then we make preliminary recommendations regarding concrete steps that are necessary in order to
embed human rights in the future of policing in Ireland. This submission is not a comprehensive audit
of the measures necessary to embed human rights; rather it is a starting point for further research
which should continue into the future (including by dedicated human rights experts in each of the
institutions involved in policing) if human rights are to be embedded in policing in Ireland.
“OUR OVERARCHING PROPOSAL IS THAT THE COMMISSION ON THE
FUTURE OF POLICING SHOULD PLACE HUMAN RIGHTS AT THE CORE OF
ITS RECOMMENDATIONS FOR REFORM OF POLICING IN IRELAND. HUMAN
RIGHTS SHOULD BE UNDERSTOOD TO BE A FOUNDATIONAL FRAMEWORK
ENCOMPASSING ALL ASPECTS OF POLICING AND CONNECTING POLICING TO
OTHER ASPECTS OF STATE TREATMENT OF INDIVIDUALS.”
06 RIGHTS-BASED POLICING: HOW DO WE GET THERE?
WE MAKE FOUR GROUPS OF RECOMMENDATIONS
1
The creation of a comprehensive
framework for embedding human
rights in all aspects of policing
2
Strengthening of accountability
to the public through greater
transparency, legal accountability,
and independent oversight
3
An overhaul of the systems of State
security and surveillance
4
Fostering a culture of respect for
human rights and equality
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 07
1. THE CREATION OF A COMPREHENSIVE FRAMEWORK FOR EMBEDDING
HUMAN RIGHTS IN ALL ASPECTS OF POLICING
This would include a statutory basis for embedding human rights and a human rights monitoring
index to evaluate their embedding. We also recommend that Human Rights Officers, with the
authority to engage with and make recommendations in all areas, be employed in each of the policing
institutions. Crucially, we call for a statutory mechanism to implement the recommendations of
the Commission on the Future of Policing in Ireland.
2. STRENGTHENING OF ACCOUNTABILITY TO THE PUBLIC THROUGH
GREATER TRANSPARENCY, LEGAL ACCOUNTABILITY, AND
INDEPENDENT OVERSIGHT
We recommend a presumption in favour of publishing all internal Garda policies and practices, in
line with principles of transparency.
In the area of legal accountability we call for better protection of the rights of suspects through
legislating for access to a lawyer, and doctor and/or psychiatrist, in detention as well as through
keeping detention records and interview transcripts.
We recommend a review of Garda disciplinary procedures, the discontinuation of the practice
of individual Gardaí prosecuting suspects, a thorough review of every step of the process of
ensuring the right to an effective remedy, and the establishment of a statutory scheme for witness
protection.
Further, we call for a review of structures and procedures relating to the detention of older people
and people with disabilities as well as the role of individual Gardaí in the process of detaining
persons and in protecting individuals from arbitrary detention.
With regard to independent oversight, we call for the ratification of the Optional Protocol to the
UN Convention against Torture (OPCAT) and establishment of a National Preventive Mechanism
(NPM) which inspects and reports on conditions in all places of deprivation of liberty in the State.
This is one of the most urgent recommendations we make, given the European Committee on the
Prevention of Torture (CPT)’s findings that there was evidence of ill-treatment in Garda custody as
recently as 2015.
We call for an independent oversight mechanism within the Department of Justice and Equality to
oversee complaints of Garda misconduct, and another to oversee surveillance and data retention
practices.
We acknowledge the difficulties faced by oversight mechanisms such as the Policing Authority
and GSOC. We recommend a thorough review of the relationship between the Policing Authority,
the Minister and the Department of Justice, and An Garda Síochána. We also recommend better
resourcing of GSOC and a review of its statutory powers.
We recommend the establishment of an Ombudsman for Victims to consider complaints from
victims of crime. Further, we call for the provision of legal aid to victims of human rights violations
by state actors.
08 RIGHTS-BASED POLICING: HOW DO WE GET THERE?3. AN OVERHAUL OF THE SYSTEMS OF STATE SECURITY AND SURVEILLANCE Regarding the question of whether ‘state security’ operations should be separated from public order and community policing, our primary concern relates to the need for accountability and oversight of national security functions. A human rights perspective requires that the principles of legality, proportionality and accountability be respected. We call for an overhaul of the systems of oversight and accountability of all agencies or institutions exercising national security functions. We recommend that, as part of a wholesale reconfiguration of the law on state surveillance and data protection, there should be a statutory unified supervisory authority with parliamentary accountability that is capable of overseeing all state surveillance. We also recommend that a mechanism of parliamentary oversight be established, with sufficient controls and security clearance to ensure effective independent oversight of all state surveillance and data protection methods. 4. FOSTERING A CULTURE OF RESPECT FOR HUMAN RIGHTS AND EQUALITY It is clear to ICCL that for our vision to materialise, we need commitment to human rights principles on the part of Gardaí at every level. This will only follow the integration of human rights training into all aspects of Garda education; training which should not only encompass European standards relating directly to policing, victims’ rights and suspects’ rights, but should also cover the principal standards set out in the ECHR and UN treaties. Further, the reform of Garda management and human resources structures must be grounded in a commitment to protect human rights, including the human rights of Gardaí. The provision of adequate resources to community policing is also essential to enable the State’s human rights obligations to be met in all areas with which policing interacts. We are encouraged by efforts observed over the past number of years to reform An Garda Síochána so that the organisation respects the rights of all those who interact with it. We are ambitious in our vision of a force that commands the trust of the public, protects the most vulnerable populations in our society, and properly investigates and holds to account those who violate the rights of others. And we are steadfast in our belief that all of this can be achieved, as long as there is a strong commitment and appetite for real reform on the part of all those involved with An Garda Síochána. “WE ARE AMBITIOUS IN OUR VISION OF A FORCE THAT COMMANDS THE TRUST OF THE PUBLIC, PROTECTS THE MOST VULNERABLE POPULATIONS IN OUR SOCIETY, AND PROPERLY INVESTIGATES AND HOLDS TO ACCOUNT THOSE WHO VIOLATE THE RIGHTS OF OTHERS.” A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 09
PART A WHY HUMAN RIGHTS ARE FOUNDATIONAL TO ALL ASPECTS OF POLICING
1. WHAT ARE HUMAN RIGHTS?
F
rom a political and legal perspective, the concept of ‘human rights’ essentially means the core
set of claims that individuals are entitled to make on the State regarding how they are treated.
The generally agreed basis for human rights is the inherent dignity of every person. Our equal
dignity means that we are each entitled to be treated with a minimum level of respect and that we are
each entitled to have access to the freedoms and supports that are necessary to live a meaningful life.
Some human rights are absolute, meaning that the State can never justify interfering with them no
matter the circumstances. These include the right to be free from torture and other cruel, inhuman or
degrading treatment, and the right to be free from slavery. Many other human rights are understood
to be ‘limited’ or ‘qualified’ rights. This means that the State may only interfere with them under strict
circumstances and subject to criteria that are set out in law.
Human rights are not only about prohibiting certain state action. All human rights also require the
State to take positive action to some degree: for example, through the enactment of legislation
and policies, the enforcement of legal requirements, the provision of socio-economic resources or
other measures. When individuals and communities are in situations of vulnerability, the State has
heightened positive obligations towards them to ensure that their dignity and rights are respected.
According to numerous provisions of the Irish Constitution and a range of European and international
legal treaties, the Irish State has guaranteed that it will respect and vindicate the human rights of
all people in Ireland. These legal instruments, along with court judgments and other sources of law,
explain the practical obligations which such human rights guarantees place upon the State and the
conditions under which the State may interfere with limited and qualified rights. If the State fails to
comply with these requirements it is responsible for human rights violations and ought to be held to
account.
12 RIGHTS-BASED POLICING: HOW DO WE GET THERE?2. IRELAND’S HUMAN RIGHTS OBLIGATIONS In this section we set out Ireland’s key human rights obligations which are of relevance to the role and functions of policing. 1. HUMAN RIGHTS UNDER IRISH LAW (a) The Irish Constitution The 1937 Constitution of Ireland is based directly on the concept of human rights. Its Preamble states that the purpose of the Constitution is: ‘to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations’. The Constitution also proclaims that Ireland is a democratic state. A core aim of democracy is to enable individuals to equally enjoy their human rights.1 The rights explicitly protected by the Constitution include the rights to equality before the law,2 to life,3 to personal liberty,4 to respect for the person,5 to respect for one’s good name,6 to respect for one’s property,7 to respect for one’s home,8 to freedom of expression,9 to freedom of peaceful assembly,10 to freedom of association,11 to marry,12 to receive an education,13 to respect for one’s rights as a child,14 and to freedom of religion.15 The Constitution has also been found by the courts to implicitly protect a range of other human rights, including the right to respect for one’s private life,16 the right to freedom from torture and inhuman or degrading treatment,17 and the right to bodily integrity.18 (b) European Union (EU) Law Ireland’s membership of the European Union (EU) has brought with it wide-ranging obligations to implement EU law in Ireland. The principle of ‘primacy of EU law’ means that, in areas where EU law applies to Ireland, EU law takes precedence over domestic law including the Constitution. There are numerous pieces of EU legislation which apply to the actions of An Garda Síochána and GSOC (among other state bodies). These include EU data protection laws and the EU Victims Directive.19 Whenever EU law applies to individuals in Ireland, the EU Charter of Fundamental Rights (EU Charter) also applies. The EU Charter protects the same rights as the European Convention on Human Rights (ECHR) but goes further. The Charter also protects, for example, the right of every individual to the protection of their personal data;20 the rights of the elderly to lead a life of dignity, independence and participation;21 the right of persons with disabilities to independence, integration and participation;22 the right to fair and just working conditions;23 the right to social security and social and housing assistance;24 the right to health care;25 and the right to consumer protection.26 (c) European Convention on Human Rights (ECHR) Ireland has been a party to the ECHR since February 1953. The ECHR was a response to the oppression and tyranny of the Second World War, and Ireland was one of the first states to ratify the Convention. The ECHR was incorporated directly into Irish law in 2003. The European Convention on Human Rights Act 2003 obliges every ‘organ of the state’ to act in a manner that is compatible with the State’s obligations under the ECHR. Individuals can rely on the ECHR Act 2003 to assert their ECHR rights in the Irish courts. A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 13
The ECHR prohibits discrimination and protects (among other rights) the rights to life; liberty; a
fair trial; respect for one’s private and family life; freedom from torture and inhuman or degrading
treatment or punishment; freedom from slavery and forced labour; freedom of thought, conscience
and religion; freedom of expression; freedom of assembly and association; access to education; free
elections and protection of property. Crucially, the ECHR also protects the right to an effective remedy
for violations of the Convention.
Regarding the treatment of individuals in police custody and other forms of detention, the European Court
of Human Rights interprets the ECHR in accordance with Standards set by the European Committee for
the Prevention of Torture (CPT). The CPT is a mechanism that inspects places of detention in Council of
Europe member states and publishes authoritative standards explaining how states must treat individuals
who are detained. The CPT was established under the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment, which Ireland ratified in 1988.
2. IRELAND’S HUMAN RIGHTS OBLIGATIONS UNDER INTERNATIONAL LAW
(i) Belfast / Good Friday Agreement
Human rights and equality guarantees are a cornerstone of the 1998 Belfast/Good Friday Agreement
between the Irish and British governments. In the Agreement, the Irish government undertook to
strengthen the protection of human rights in its jurisdiction and promised that it would ‘ensure at
least an equivalent level of protection of human rights as will pertain in Northern Ireland’.
The Belfast/Good Friday Agreement provided for the reform of policing in Northern Ireland so that
(among other things) policing ‘conforms with human rights norms’ and is ‘based on principles of
protection of human rights and professional integrity’. In addition, regarding political administration
in Northern Ireland, the Agreement mandated ‘arrangements to provide that key decisions and
legislation are proofed to ensure that they do not infringe the ECHR’.
(ii) Other Council of Europe treaties
Ireland has ratified several other Council of Europe human rights treaties, in addition to the ECHR.
These include:
• European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (ratified 14 March 1988)
• Revised European Social Charter (ratified 4 November 2000)
• Framework Convention for the Protection of National Minorities (ratified 7 May 1999)
(iii) International human rights treaties
Ireland is party to a whole host of additional international human rights treaties. These include
International Labour Organisation treaties prohibiting forced labour and servitude, and the following
United Nations treaties:
• International Covenant on Civil and Political Rights (ratified 8 December 1989)
• International Covenant on Economic, Social and Cultural Rights (ratified 8 December 1989)
• Convention on the Elimination of All Forms of Discrimination Against Women (ratified 23 December
1985)
14 RIGHTS-BASED POLICING: HOW DO WE GET THERE?• Convention on the Rights of the Child (ratified 28 September 1992)
• International Convention on the Elimination of All Forms of Racial Discrimination (29 December 2000)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(ratified 11 April 2002)
3. EUROPEAN AND INTERNATIONAL HUMAN RIGHTS STANDARDS CONCERNING POLICING
All of the above-mentioned legal instruments (including the Constitution, EU Charter and ECHR)
place wide-ranging obligations upon An Garda Síochána – as an institution of the State – to act in
particular ways. Descriptions of how policing must be conducted in order to comply with human rights
can be found in the case law of the Irish courts, the Court of Justice of the European Union (CJEU),
the European Court of Human Rights (ECtHR) and in the jurisprudence of the UN human rights treaty
bodies. Descriptions of policing obligations can also be found in guidelines and standards published
by Council of Europe and UN bodies, including the following:
• European Code of Police Ethics (Recommendation Rec(2001) 10 adopted by the Committee of
Ministers of the Council of Europe on 19 September 2001)27
• Council of Europe, CPT Standards (compiled from the annual reports of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment)28
• Council of Europe, Opinion of the Commissioner for Human Rights concerning Independent and
Effective Determination of Complaints against the Police (12 March 2009)29
• Council of Europe Parliamentary Assembly, Declaration on the Police (8 May 1979)30
• UN Code of Conduct for Law Enforcement Officials (17 December 1979)31
• UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) (17 December
2015)32
• UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)33
• UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (9 December 1988)34
• UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (14 December 1990)35
• UN Office of the High Commissioner for Human Rights, Manual of the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Istanbul Protocol) (2004)36
• United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, UNGA Res 60/147 (16 December 2005) UN Doc A/RES/60/147
• UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions (24 May 1989)37
• UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29
November 1985)38
• Committee Against Torture, General Comment No 2, ‘Implementation of article 2 by States Parties’
(23 November 2007)39
• Committee Against Torture, General Comment No 3, ‘Implementation of article 14 by States
parties’ (13 December 2012)40
• UN General Assembly, Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Nils Melzer: Extra-custodial use of force and the prohibition
of torture and other cruel, inhuman or degrading treatment or punishment’ (20 July 2017)41
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 153. WHY ALL ASPECTS OF POLICING AFFECT
HUMAN RIGHTS
An Garda Síochána is the most powerful manifestation of the State in the lives of the general public.
Given its powers, An Garda Síochána is the institution most often called upon to implement the State’s
obligations to protect individuals in situations of vulnerability. Equally because of its powers, it is
also the institution at greatest risk of disproportionately or otherwise unlawfully interfering with
individuals’ rights.
One of the several objectives of An Garda Síochána listed at section 7 of the Garda Síochána Act
2005 is ‘vindicating the human rights of each individual’42. In fact, the objective of vindicating human
rights should be understood to permeate all of the functions and objectives of An Garda Síochána, for
reasons including the following:
1. Much Garda activity is concerned with the preservation of democracy, which is a constitutional
bedrock of the Irish State. As explained above, a core aim of democracy is to ensure that
individuals are equally entitled to exercise their human rights and that the State affords all people
equal respect for their inherent dignity. Therefore, efforts to preserve democracy require An Garda
Síochána to respect and protect individual rights. For example: efforts by An Garda Síochána to
fight crime or the threat of terrorism must not undermine the very democracy they seek to protect
by perpetrating ill-treatment or torture, or by systematically violating individuals’ privacy rights.
2. The State’s positive obligations to protect the human rights of individuals will require Garda action
in certain situations. These obligations will also require the provision of resources by government
to An Garda Síochána so that Gardaí are in a position to respect, protect and fulfil human rights.
For example: the State’s human rights obligations require An Garda Síochána to take effective
measures to protect from threats to life or to bodily integrity which they know or ought to know
about, to initiate effective investigations into such conduct, and to provide information and other
assistance to victims. By way of another example: the State must provide adequate legal, medical
and other services to individuals who are detained by An Garda Síochána in order to safeguard
detainees’ rights to a fair trial and to treatment with dignity.
3. Through legislation and the common law, the Irish people and the courts have given An Garda
Síochána coercive powers in order to carry out their functions. These coercive powers bring
An Garda Síochána into direct contact with individuals, often non-consensually. Their coercive
powers heighten the risk that An Garda Síochána will violate rights, for example: by the excessive
use of force, by unnecessarily or disproportionately interfering with family or private life, or by
unnecessarily or disproportionately denying someone the right to protest. Regarding surveillance,
for example, former Chief Justice John L Murray in his 2017 review of the law on the data retention
stated that:
‘the statutory framework mandating communications retention constitutes a serious threat
to fundamental rights as recognised in the Irish Constitution, the European Union Charter
on Fundamental Rights and the European Convention on Human Rights and Fundamental
Freedoms… It follows that a balance has to be struck between ensuring that the state and its
authorities have effective and legitimate tools at their disposal in the fight against serious crime
and threats to the security of the state, on the one hand, and the protection of fundamental
16 RIGHTS-BASED POLICING: HOW DO WE GET THERE?rights and freedoms, on the other…Safeguarding rights in such circumstances is necessary to
protect against disproportionate interference as well as the arbitrary exercise, misuse or abuse
of the statutory powers by State bodies.’43
4. In the course of all of their activities, the Gardaí may make mistakes or act wrongfully. Because
of the impact of their actions on individual rights, mistakes or wrongdoing by An Garda Síochána
will often give rise to the right to redress, including an effective investigation.
5. In order to carry out their functions, many members of An Garda Síochána work in stressful and/
or dangerous situations. Their unique workplace environment heightens the risk that the human
rights of individual Gardaí will be violated and requires that the State provide effective measures
to protect them from ill-treatment, discrimination or other human rights violations.
6. It is frequently the case that individuals who have been involved in crime or are accused or
suspected of being involved in crime, may be in vulnerable positions, in the sense that they
may be suffering from ill-health or mental health difficulties, may be homeless or suffering
from addiction, and they may be dependent on the State for healthcare, housing or other basic
necessities. Respecting the human rights of vulnerable individuals in the course of exercising
policing powers may require special measures and cooperation with other State agencies.
7. Although not specifically recognised in the list of objectives set out in section 7 of the Garda
Síochána Act, members of An Garda Síochána routinely provide assistance to members of the
public, including in emergencies of all kinds. This includes assistance to individuals who are
dependent on the State and to whom other more appropriate State services are unavailable.
In other words, members of An Garda Síochána frequently interact with people in vulnerable
situations to whom the State owes a duty of care in accordance with its human rights obligations.
In this way, policing interacts with a range of other sectors in which the State holds human
rights obligations towards children and adults, and where the State may be failing in those
obligations.
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 174. IMPLEMENTATION AND ENFORCEMENT OF
HUMAN RIGHTS OBLIGATIONS IN IRELAND
It is one thing for human rights guarantees to be enshrined in legally binding instruments. It is
another for the State to actually implement its obligations on a day-to-day basis in its dealings with
all individuals and groups of people. Creating a society where all individuals in reality enjoy their
human rights requires the translation of the constitutional and treaty guarantees into the legislation,
structures, policies, practices and culture of the institutions and individual representatives of the
State.
Ireland is currently going through a period of transition whereby it is grappling with a history of
grave and systematic human rights abuses perpetrated against people marginalised in society.
This includes the systemic abuse of children in inadequately monitored church-run institutions, the
widespread arbitrary detention and forced labour of women, children and people with or perceived to
have disabilities, and the routine forcible separation and degrading treatment of unmarried families.
Numerous institutions of the State were involved in these abuses, including An Garda Síochána. In
order to guarantee that similar abuses do not happen in the future, we need to reform the structures
and the culture that allowed them in the past. Within the specific history of Irish policing, over recent
decades individual rights have been violated or compromised by Garda malpractice or failings of
Garda management. These violations of rights cover a wide range of areas of policing, but include
violations of suspects’ rights in Garda custody, abuse of the due process rights of suspects, illegal
gathering of evidence, and illegal use of surveillance and interception.
A key reason for the systematic abuses that have occurred during Ireland’s history is that the human
rights guarantees in the Constitution and in European and international treaties have not been
recognised by, or filtered down to, the laws, policies and actions of State institutions. These systematic
abuses – including abuses uncovered more recently concerning the practices of An Garda Síochána
– demonstrate that the Irish superior courts and European courts are not sufficient safeguards for
the protection of rights. Individuals who are on the receiving end of mistreatment perpetrated or
apparently accepted by the State, or who depend on the State, are rarely in a position to assert their
rights in court. Even if some people do take on the burden of court action, the remedies available to
individual litigants usually do not extend to all others who are affected.
Effective protection of human rights can only be achieved by state institutions taking proactive action
to embed human rights in all of the ways that they behave, including through policing. In 2014, the
Irish Human Rights and Equality Act established a ‘Public Sector Equality and Human Rights Duty’,44
recognising this very point. This Public Sector Duty requires all public bodies in Ireland to embed
their equality and human rights obligations (deriving from the constitutional and treaty guarantees
discussed above) in their planning and policy processes. According to section 42(1) of the Act, every
public body:
‘Shall in the performance of its functions, have regard to the need to:
1. eliminate discrimination,
2. promote equality of opportunity and treatment of its staff and the persons to whom it provides
services, and
3. protect the human rights of its members, staff and the persons to whom it provides services.’
18 RIGHTS-BASED POLICING: HOW DO WE GET THERE?The Irish Human Rights and Equality Commission explains in its guidance on the Public Sector Duty45 that this section of the Act requires all public bodies to incorporate their human rights and equality obligations into the following core planning and policy processes: 1. In preparing strategic plans, public sector bodies must assess and identify the human rights and equality issues that are relevant to their functions. These issues must relate to all of its functions as a policy maker, employer and service provider. 2. Public bodies must then identify the policies and practices that they have in place or that they plan to put in place to address these issues. 3. In their annual reports or equivalent documents, public bodies must report in a manner accessible to the public on their developments and achievement in that regard. A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 19
PART B CONCRETE STEPS NECESSARY TO EMBED HUMAN RIGHTS IN IRISH POLICING
W
hat follows are preliminary recommendations regarding reforms that the ICCL believes are
necessary to achieve human rights-based policing in Ireland. It is not possible in the space
of these submissions to thoroughly explore the entire content of the above-mentioned
sources of law, guidance and comparative best practice examples. This is a task that the ICCL will
continue to undertake and it is a task that the ICCL wishes to see undertaken on a continuous basis
in the future by human rights experts embedded in all of the institutions concerned with policing in
Ireland, in consultation with all stakeholders.
It is important to acknowledge that there is already a wealth of information, advice and comparative
examples available to those who are committed to creating a system of human rights-based policing
in Ireland. This existing body of knowledge includes (and goes beyond):
• the reports of the Garda Inspectorate, the Garda Síochána Ombudsman Commission, the Policing
Authority, and numerous Oireachtas reports and reports of independent judicial inquiries and
non-statutory inquiries;
• the previous work of the Garda Strategic Human Rights Advisory Committee;
• the reports and submissions of the Irish Human Rights and Equality Commission (and the former
Irish Human Rights Commission) concerning human rights-based policing;
• the reports of the European and international human rights bodies that have made
recommendations concerning Ireland following the gathering of evidence, including the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the
United Nations Committee Against Torture and the United Nations Human Rights Committee;
• the work of academics, including Dermot Walsh’s publication, Human Rights and Policing in
Ireland (Clarus Press 2009); the comparative expertise available in other jurisdictions, most
notably Northern Ireland,46 and from international and regional organisations concerned with
human rights-based policing.47
In this part of our submission, we summarise the key steps which ICCL believes should now be taken
to support the implementation of human rights across all aspects of policing.
22 RIGHTS-BASED POLICING: HOW DO WE GET THERE?1. A COMPREHENSIVE FRAMEWORK FOR
EMBEDDING HUMAN RIGHTS
The ICCL’s primary recommendation is that a comprehensive human rights-embedding framework
should be created to ensure that respect for human rights is integral to everything that is done by
individual members of An Garda Síochána and each of the institutions of policing in Ireland.
(a) A statutory basis for all of the key mechanisms that are required to embed human rights in
all aspects of policing
The ICCL welcomes the fact that human rights are already included as both a ‘policing principle’
and an objective of An Garda Síochána in the Garda Síochána Act 2005 (as amended). However,
legislation should provide more specifically for compliance with the State’s human rights
obligations regarding policing. We recommend that ensuring compliance with the State’s
human rights obligations be enshrined as a statutory function of all of the policing oversight
bodies. We make further specific recommendations regarding the need to put human rights on
a statutory footing below.
(b) Human Rights Officers with the authority to engage with and make recommendations in all
areas in each of the policing institutions
In order for the State’s human rights obligations to be respected in all areas of policing in the
future, it is essential that every institution with responsibility for policing is staffed with a sufficient
number of human rights experts who have the authority to continuously monitor and provide input
into laws, policies, practices and cultural aspects of policing.
Within An Garda Síochána there should be human rights experts embedded in all areas, including
human resources, operations and training. Human rights experts should also be employed to
work within GSOC, the Inspectorate, the Policing Authority, the Department of Justice and any
future bodies with responsibility for aspects of policing.
There is an absolute need for regulation and oversight of state security operations in order to
ensure compliance with the State’s human rights obligations. In areas where access to policies
and practice needs to be restricted for security reasons, it is essential that there is provision for
special security clearance to be given to some human rights experts to enable them to continuously
monitor human rights compliance by the policing institutions.
(c) Human rights monitoring index
We recommend that the Commission re-visit the work carried out in the previous decade by
members of the Strategic Human Rights Advisory Committee (SHRAC) who drafted a Human
Rights Monitoring Framework. The aim of the framework was to provide an index against which
the compliance of An Garda Síochána with its human rights obligations could be assessed on an
ongoing basis. The SHRAC’s work followed the finding in the 2004 Garda Human Rights Audit by
Ionann Management Consultants48 that:
[T]here do not appear to be mechanisms in place at present to allow for systematic and routine
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 23monitoring of the use of police powers in relation to human rights issues. Nor are there central,
strategic mechanisms to assess the impact of existing and new policies and practices and to
recommend changes as needed.
We recommend that such an overarching framework should extend to the human rights compliance
of all institutions involved in policing and should be reviewed by human rights officers or experts
who together form a team that can work together and enable the transfer of knowledge.
(d) A statutory mechanism for following up on the Commission’s recommendations
The ICCL welcomes the Commission’s stated intention to place human rights at the core of
its recommendations on the future of policing. We stress the importance of ensuring that the
Commission’s recommendations are actually implemented, and comprehensively. We believe that
a statutory mechanism to ensure implementation over time is advisable.49 In this regard, we also
note the establishment of an Implementation Oversight Group to oversee implementation of the
recommendations of the Penal Policy Review Group (PPRG), a body with a similar remit to review
policy in another area of Irish justice policy. The ICCL believes that a similar implementation
structure may add value in this area.
24 RIGHTS-BASED POLICING: HOW DO WE GET THERE?2. ACCOUNTABILITY AND OVERSIGHT
STRUCTURES
This section discusses ways in which the (a) transparency, (b) legal accountability, and (c) independent
oversight of policing could be improved to ensure compliance with the State’s human rights obligations.
The following Principles of the European Code of Police Ethics are of particular relevance:
• Principle 3: Police operations must always be conducted in accordance with the national law and
international standards accepted by the country.
• Principle 4: Legislation guiding the police shall be accessible to the public and sufficiently clear
and precise, and, if need be, supported by clear regulations equally accessible to the public.
• Principle 59: The police shall be accountable to the state, the citizens and their representatives.
They shall be subject to efficient external control.
• Principle 60: State control of the police shall be divided between the legislative, the executive and
the judicial powers.
• Principle 61. Public authorities shall ensure effective and impartial procedures for complaints
against the police.
• Principle 62. Accountability mechanisms, based on communication and mutual understanding
between the public and the police, shall be promoted.
The areas of state surveillance and use of personal data could be included in this section, but we
address them in a discrete section further on in our submission (see Section 3 on ‘Surveillance,
Privacy and State Security’).
2.1 TRANSPARENCY
(a) Garda policies should be publicly available
The ICCL believes that a human rights-based approach to policing requires the publication of
policies to the extent possible. If there are genuine security concerns that prevent the publication
of certain policies, they should nonetheless be available to human rights officers in An Garda
Síochána and the oversight mechanisms.
In 2009, the IHRC called for the publication of the Garda Code and Garda operational policies
in order to enable human rights-proofing of the policies and allow for independent external
assessment and oversight.50 The IHRC noted that ‘[w]ithout publication it cannot be assessed
whether internal garda policies contain adequate and effective safeguards to protect the individual
from arbitrary or unjustifiable interference with their rights.’51
Some Garda policies have been published.52 However, in 2009 the IHRC found that, for the most
part, the broad discretionary powers of An Garda Síochána in the area of operational policing were
‘not circumscribed by transparent guidance in the form of accessible written Garda policies or by
guidance in the form of Ministerial regulations or codes of practice.’53 In 2016, the Independent
Review Mechanism (IRM) reported that it required the assistance of the Chief Superintendent,
Crime Policy and Administration, to access approximately 22 HQ Directives relevant to victim
support, family liaison officers and the offering of reasons for decisions in the prosecution or
non-prosecution of crimes.54 The IRM stated that it had not had full access to the training afforded
to family liaison officers and their coordinators.55
A SUBMISSION TO THE COMMISSION ON THE FUTURE OF POLICING 25The ICCL welcomes the proposal in the Garda Síochána (Amendment) Bill 2017 (Private
Member’s Bill) to specify as one of the functions of the Policing Authority: ‘to cause to be
published and made accessible to the public all sections of the Garda Code and Garda
operational policies and procedures, save where such publication would undermine national
security or crime prevention and detection as decided by the Authority in consultation with the
Garda Commissioner’.
A related issue that the ICCL suggests the Commission should consider is whether the current
Freedom of Information restrictions that apply to An Garda Síochána should be reviewed.
(b) Statistical data on Garda actions and practices should be readily available
The provision of statistical data regarding policing operations and the ways in which An Garda
Síochána and GSOC are implementing their human rights obligations is an important accountability
mechanism and a key aspect of human rights-based policing. It is important to highlight the
following:
• Accurate recording of data requires effective systems and laws relating to the recording and
use of personal data by An Garda Síochána. In Section 3 below, we discuss the need for review of
the legislation and oversight structures governing state surveillance and use of personal data.
The need for a radical overhaul of laws, structures and practices in this area is demonstrated
by, among other things, the findings in the Fennelly Report, the Central Statistics Office’s
current difficulties in determining how and to what extent the Gardaí have been recording
incidents of domestic abuse,56 and the continuing delay in publication of the Garda review into
the classification of homicides.57
• The ICCL’s report to the UN Committee Against Torture in 2017 noted the absence of publicly
available statistics on the number of allegations of torture or ill-treatment against members
of the Garda, and requested that the State provide detailed information on all complaints filed
with GSOC which may relate to ill-treatment and on the final outcome of such complaints
processed by GSOC.58 In its Concluding Observations on Ireland, the Committee Against Torture
recommended that the State should ‘[c]ollect data on the performance of the police with
respect to provision of fundamental safeguards against torture to persons deprived of their
liberty, including data on cases in which police officers have been subjected to disciplinary or
other measures for failing to respect such safeguards, and provide this information in its next
report to the Committee.’59
• The ICCL welcomes the government’s (albeit delayed) commitment to conduct a second SAVI
(Sexual Abuse and Violence in Ireland) study and notes that both the UN Committee Against
Torture60 and UN Human Rights Committee61 requested in their most recent Concluding
Observations on Ireland that the State gather data on the extent of violence against women,
including domestic and sexual violence, in order to ensure the full implementation of its
obligations to prevent and protection from such violence.
26 RIGHTS-BASED POLICING: HOW DO WE GET THERE?You can also read
